Many medical malpractice cases involve a physician who prescribed the wrong type or dosage of medication, causing physical harm to the patient. Such negligence is obviously horrific and inexcusable. But the Georgia Court of Appeals recently considered a different sort of negligence case involving a physician and an incorrect prescription.

Carter v. Cornwell

The plaintiff in this case is a Georgia woman who suffers from chronic pain. She had been under the care of the defendant, her physician, for 16 years. During an office visit in 2014, the defendant issued the plaintiff a prescription for 120 pills of hydrocodone. But the defendant subsequently altered the prescription to 180 pills before the plaintiff left his office.

The plaintiff took the prescription to a nearby pharmacy. The pharmacist, noting the prescription had been altered from 120 to 180 pills, contacted the defendant’s office to confirm the change was legitimate. The defendant’s partner answered the call and said he was unaware of any alteration to the plaintiff’s prescription.

Rather than wait to check with the defendant, the pharmacy apparently assumed the plaintiff had altered the prescription herself. When the plaintiff returned to the pharmacy, she was met by law enforcement, who arrested and charged her with illegally attempting to obtain a “controlled substance.” The plaintiff subsequently sued the defendant, alleging his negligence led to her wrongful arrest.

A Georgia trial court dismissed the plaintiff’s lawsuit because it agreed with the defendant that this was a medical malpractice complaint. Georgia, like many states, requires a medical malpractice plaintiff file an “expert affidavit” explaining how the defendant deviated from the accepted standard of care. The plaintiff here did not file such an affidavit.

But the Court of Appeals reversed the judge’s decision, holding that no affidavit was required. While the defendant’s decision to change the prescription from 120 to 180 pills required the “exercise of professional judgment,” the partner’s failure to contact the defendant to confirm the alteration was an administrative act. Georgia law only requires an affidavit when alleging acts of “professional” rather than “ordinary” negligence.

The plaintiff’s claim here falls into the latter category. “Professional judgment or skill is not involved in simply verifying if a patient is in lawful possession of a prescription for a controlled substance,” the Court said in its written opinion reinstating the plaintiff’s lawsuit. Not every lawsuit against a physician is a necessarily a claim for professional negligence, the Court observed. This particular case does not “turn on a medical question.”

The Court of Appeals did not rule on the merits of the plaintiff’s lawsuit. It should also be noted that the Court treated the plaintiff’s allegations as true for purposes of deciding this appeal. And the Court of Appeals did affirm the trial judge’s holding the plaintiff could not sue the defendant for negligence with respect to the alteration of the prescription itself. That was an act of “professional judgment” that required an expert affidavit. The only issue remaining for the trial court is whether the defendant committed ordinary negligence in failing to properly confirm the prescription to the pharmacy.